FAQ

When I applied to upgrade from pre-settled status to settled status, the application was refused, and I was told my pre-settled status was granted in error and wouldn’t be extended. My status expires next month. I appealed the refusal – will the appeal continue to protect my rights once my status expires?

Unfortunately, when someone receives a refusal decision before their current immigration status has expired, any appeal of that refusal does not fall within the scope of so-called ‘3C leave’ that usually protects people while they wait for the outcome of an appeal.

The way to get ‘3C leave’ protection while waiting for the outcome of the appeal, is if the application is made before the pre-settled status has expired but the application is refused after its expiry, and that refusal is then appealed in time.

So, to protect your rights you should:

1. Submit a fresh application for settled status shortly before the expiry of your pre-settled status, in the hope that the application is refused after your pre-settled status has expired. It is therefore best to do this quite close to the expiry date, for example, a few days before.
2. Appeal the refusal of this second application - even though you already have an appeal outstanding against the refusal of your previous application. Your ‘3C leave’ protection will attach to this second appeal.

A few very important points:

• It is extremely important not to wait until your pre-settled status has already expired, because the protection of ‘3C leave’ will not work, and the Home Office may then treat your application as a late application and could reject it for not being a valid application. A rejection decision (rather than a refusal decision) does not come with a right of appeal. The EUSS Caseworker Guidance says about late applications in this situation: “A person will not generally be able to satisfy you that there are reasonable grounds for their delay in making their application where they held pre-settled status and, on making an application for settled status, were informed as part of the refusal of that application that their pre-settled status was granted in error, as they will have already had a right of appeal against that decision.”
   
• We would recommend that, if possible, you get legal advice to help you submit your fresh application. This is because if you were to make any small mistake in submitting your application, the Home Office might reject your application as invalid. This is not the same as refusing your application and does not come with a right of appeal. If you had submitted the application close to the expiry date, as recommended above, the Home Office rejection would likely come after your pre-settled status expiry and put you into the position of being a late applicant. As set out in the bullet point above, this means you can no longer get ‘3C leave’ protection.
   
• It is extremely important that you submit your appeal (of your second application) in time. However, if you do miss the deadline to appeal, and you submit the appeal after the deadline, a judge can consider whether or not to ‘extend time’. If the judge agrees to extend time, this would resurrect ‘3C leave’ protection from the date you lodged your out of time appeal. However, your continuous lawful residence would be broken for the period between the deadline to submit the appeal and the date on which you lodged the late appeal.
   
• Do not travel out of the UK once your pre-settled status expiry date has passed. This is very important - as leaving the UK would mean you lose any ‘3C leave’ protection.
   
  • If your expiry date has passed but you have not yet received the refusal of your second application, then leaving the UK results in the Home Office withdrawing your second application. Your existing appeal (against the refusal of your first application) will still be pending so if you are ultimately successful you would get your EUSS status back, but you would have no lawful status in the UK while waiting for the appeal to be heard, and you would not be able to re-enter the UK without obtaining alternative permission to enter from the Home Office.
     
  • If you have received the refusal of your second application and appealed it, then leaving the UK results in the loss of your ‘3C leave’ protection. Both your appeals would still be pending, but you would have no lawful status in the UK while waiting for the appeal to be heard, and you would not be able to re-enter the UK without obtaining alternative permission to enter from the Home Office.
    
     

The complexity described above to try to protect your rights while you challenge the Home Office refusal is why we need to challenge the whole ‘grant in error’ policy. 

If our legal challenge succeeds, the situation legally becomes more straightforward. In every case the Home Office would need to either extend pre-settled status, or remove it via a curtailment process that is compliant with the Withdrawal Agreement. This means if someone appeals a decision to curtail their status, their rights in the UK, including the right to travel, would remain fully protected until there is a final outcome of the appeal.

If the above applies to you or someone you know, please Report It! to us.

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